Framing Deaf Special Education in Due Process Presented by Caroline Jackson, Esq. and Tawny Holmes Hlibok, Esq. National Association of the Deaf Tenbroek Symposium, March 2019

Overview Who are the Deaf students? Still in the IEP process? Demographics Language difference Use of interpreters Still in the IEP process? What to look for Issues in inclusion Use of Independent evaluators Now, it’s time for the court! Case strategies Defenses and responses Interpreter considerations

Who are the Deaf students Who are the Deaf students? (hint: they come from all kinds of backgrounds) Immigrants, language deprived, passing-thru, bluffing, struggling, frustrated, smart, studies too much

By the numbers... Birth rates for deaf children has held steady for the past 20 years, 1.5 per 1,000 Newborn hearing screening rates have improved to 98% Early intervention services rate still is low- averaging 40-60% 85% of families select spoken language for their deaf child. When they enter K-12 schooling, 55% of children know ASL 72% of parents don’t know ASL. 86.4% of children attend public schools. Sources: National Center on Hearing Management and Assessment statistics 2017, ASHA Pediatrics statistics (2013), Annual Survey, Gallaudet Research Institute (2012). National Center on Educational Statistics (2014).

Mediated instruction v. direct instruction Use of interpreters: the good, bad, and ugly Meme of fake interpreter from Nelson Mandela’s memorial service, 2013

Still in the IEP process?

What to look for in general? A year’s progress in a year’s time https://sites.ed.gov/idea/files/qa-endrewcase-12-07-2017.pdf Goals aligned to state curriculum standards on age/grade level https://www.educationworld.com/standards/ What’s a no-no? Repeated/simplified goals from last year(s) Barely there services for broad goals

What to look for when it comes to a Deaf child? Successful inclusion from a Deaf child’s perspective: https://www.nad.org/about-us/position-statements/position-statement-on-inclusion/ Effective communication: https://www2.ed.gov/about/offices/list/ocr/docs/dcl-faqs- effective-communication-201411.pdf Consideration of special factors in IDEA for Deaf children (§300.324(a)(2)(i)-(v)): https://www.parentcenterhub.org/special-factors/ Achievement of language milestones on a timely manner: https://www.cde.ca.gov/sp/ss/dh/sb210langmilestones.asp

More concretely Goals that evaluate progress in language, not just in reading Services that teach language, not just vocabulary or speech Evaluations that measure language, not just reading Hearing tests that reflect what is understood, not just what is detected Rule out learning disability -- there’s no excuse for being behind!

Independent educational evaluator (IEE) What’s the benefits? Who can do it? Where to find one?

Now it’s time for the hearing!

General case strategies Work with deaf organizations or someone familiar with deaf education from the onset Ensure all interpreting needs are met (may need Certified Deaf Interpreter for client) Show, don’t tell

Witnesses and witnesses Who to call first? What should be their roles? What can they teach the court?

Show, Don’t Tell Set a baseline for what successful d/Deaf people look like: Use a deaf expert witness, when possible (NAD can help locate) Find ways to mention deaf lawyers, judges, doctors, etc. These are the only appropriate expectations for the student!! Set a baseline for what successful learning looks like: Use state standards for content knowledge Use common core for soft skills, like communication (“speaking and listening”) http://www.corestandards.org/

Questions that Show Can do math problems- great- but can they do word problems? What classes have they taken? Biology? Great! Quiz them on common concepts. Have they been at different schools? What worked/not worked? What reading level are they on? 3rd? How is the school trying to improve that level? Can they answer simple questions about their family? Their favorite foods/colors? Friends?

Defenses to confront Oh they’re just deaf- that’s why they can’t learn. (learning disabilities? Early language access? Access to sign language?) They can hear just fine! (But can they understand what they’re hearing?) They didn’t even look at the interpreter or want to use the technology! (Behavior’s the answer! Did they already have language foundation? Know how to use?) We tried to teach them more but it didn’t sink in (increased time on reading strategies not the answer- they need language access) We accommodated them! (But did they improve??) Can set up to show up one at a time

Important other cases K.M. v. Tustin Unified School District, 725 F.3d 1088 (9th Cir. 2013) IDEA rights, ADA rights are distinct DeKalb Cty. Bd. of Educ. v. Manifold, No. 4:13-CV-00901-VEH, 2015 WL 13648358 (N.D. Ala. July 16, 2015) Distinguished Tustin because experts observed student in classroom Poway Unified Sch. Dist. v. K.C. ex rel. Cheng, No. 10CV897-GPC DHB, 2014 WL 129086 (S.D. Cal. Jan. 14, 2014) FAPE denial and ADA violation (effective communication)

Thank you. Caroline.Jackson@nad.org Tawny.Holmes.Hlibok@nad.org www.nad.org